Book Review: Fitness to Plead: International and Comparative Perspectives

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

Fitness to Plead: International and Comparative Perspectives. Edited by Ronnie Mackay & Warren Brookbanks. Oxford: Oxford University Press, 2018. xxxi, 323 p. Includes list of contributors and index. ISBN 978-0-19-8788478 (hardcover) $75.00; ISBN 9780191092718 (Kobo) $59.99, (Kindle) $66.27.

Reviewed by Goldwynn Lewis
Law Librarian
Public Prosecution Service of Canada
In CLLR 44:4

In Fitness to Plead: International and Comparative Perspectives, Ronnie Mackay, professor of criminal policy and mental health at De Montfort University, and Warren Brookbanks, professor of law at Auckland University of Technology, bring together legal scholars from common law (England, Wales, Scotland, Canada, New Zealand, Australia, United States) and civil law (Netherlands, Italy) countries to explore the very complex subject of the doctrine of fitness to plead. In the book’s foreword, Lady Hale of the Supreme Court of the United Kingdom asks us if we “[s]hould be glad or sorry that so few people are found ‘unfit to plead’ in criminal trials,” an intriguing question and starting point for the problems explored throughout the book.

Fitness to Plead, part of the Oxford Monographs on Criminal Law and Justice Series, comprises 14 chapters and includes a table of cases and a table of legislation organized by the aforementioned jurisdictions in addition to sections for the European Court of Human Rights, the International Criminal Court, and various international criminal and military tribunals. The book also includes a useful subject index.

In each chapter, the authors summarize the development of the fitness to plead in their jurisdictions, define key legal concepts and procedures, and discuss how courts and governments have attempted to solve particular problems over time. For example, in Chapter 2, “The Development of Unfitness to Plead in English Law,” Mackay discusses a new test for unfitness to plead that was introduced “as a result of litigation in the Channel Island of Jersey, the first and so far, only British jurisdiction to incorporate decisional competence into a test for unfitness to plead” (p. 7). By contrast, in Canada there is still a relatively low bar for testing fitness. As noted by Garry Ferguson in Chapter 6, “Unfit to Stand Trial: Canadian Law,” courts in Canada have adopted a lower threshold than that of “analytical capacity,” whereby fitness requires only “limited cognitive capacity” (p. 110).

Many of the authors also discuss legal reforms either proposed or undertaken to improve the law. For instance, in Chapter 8, “Fitness to Stand Trial under Australian Law,” Ian Freckelton examines proposals put forth in recent reports by the New South Wales Law Reform Commission (2013), the Victorian Law Reform Commission (2014), and the Australian Law Reform Commission (2014; 2017). Other authors, such as Richard J. Bonnie in Chapter 9, “Fitness for Criminal Adjudication: The Emerging Significance of Decisional Competence in the United States,” make proposals for future developments.

The perspective of Fitness to Plead is international and comparative. It is exploratory and scholarly rather than a reference tool for practitioners. As stated in the general editor’s preface, “the publication of this volume is likely to make an important contribution to the cause of law reform in relation to fairness and the criminal process” (p. xi).

Titles such as Fitness to Stand Trial: Fairness First & Foremost (Irwin Law, 2018) and the loose-leaf title Mental Disorder in Canadian Criminal Law (Carswell, 2006–) are better suited for the practitioner looking for practical guidance on the intricacies of fitness processes in Canada. In the conclusion, Mackay and Brookbanks also acknowledge that “the particular perspective [of their book] is that of clinicians, lawyers, and policy makers, but not that of the consumers who are the subjects of unfitness-to-stand-trial investigations. While their interests may overlap with some of the themes explored here, they are also distinctive and warrant a much fuller investigation” (p. 299)

I recommend Fitness to Plead: International and Comparative Perspectives for law students, legal scholars and advocates, and policy makers, as well as members of the public who are interested in the intersection of mental disorders and the criminal law.